Devinder Kumar vs Smt. Swarna Kumari and Others

Bhawani Singh, A.C.J.

This case has a chequered history. In order to trace it, I have to go to agreement dated August 3, 1973 (Ext.PA). It was entered into between the Petitioner and Respondents No. 1 and 2. The third Respondent is not only General Power of Attorney of these two Respondents but also husband of Respondent No. 1, Smt. Swarna Kumari.

By virtue of this agreement, the Petitioner gave the possession of the premises namely, upper flat of Bilaspur Vakilkhana, Tilak Nagar, Shimla-5 in order to enable them to re-construct the building. As a sequal to the vacation of these premises by the Petitioner, the Respondents started construction and then completed it. The agreement stipulated that on completion of the construction, the Respondents would place the premises in occupation of the Petitioner as a tenant, the rent to be settled in accordance with scheduled rates of the Public Works Department to the Government of Himachal Pradesh. As to the completion of the construction, the Petitioner was to be informed by the Respondents for taking possession thereof.

After the construction of the building, when the possession was not given to the Petitioner, a suit for specific performance of the contract was preferred in the Court of the Senior Sub-Judge, Shimla, who assigned the same for disposal to Sub-Judge, First Class (3), Shimla. The key purpose of filing the suit was to seek the possession of the premises from the Respondents and in the meantime to restrain them from renting out the premises to some-one else. By way of interim measure, application under Order 39, Rules 1 and 2, CPC was also filed. The trial Court passed interim order which was ultimately confirmed on July 8, 1977 after hearing the parties. It is worthwhile to record here that by this order, the trial Court directed the Respondents not to let out one suite in this building. The Respondents challenged this order before the District Judge where the matter was withdrawn on the statement of the Respondents that one suite in the building would not be let out till the disposal of the suit in question. This suite wis in the self occupation of the Respondents.

The main suit was decreed by the trial Court on April 7, 1982. This decision was challenged by the Respondents before the District Judge where it was dismissed by the Additional District Judge, Shimla on August 7, 1984. It is important to quote certain observations recorded in para 6 of the judgment:

All these circumstances and conduct of the Defendants reflected malafides on their part and this conduct only revealed that they were out to evict the tenant at any costs. The tenant with the manipulation of the landlord in the present case has been, in a way deceived and under the circumstances the relief claimed in his favour by the trial Court appears to be most genuine and legally sustainable.

5 The matter did not rest here. The Respondents challenged this decision in this Court through Regular Second Appeal No. 20 (sic) of 1984. It was dismissed on November 2(sic)1984. The matter was taken to the Supreme Court of India which remanded the case to this Court for re-decision by another Judge, since the learned Judge who had dismissed it on November 23, 1984, happened to deal with the matter as District Judge, Shimla in the appeal filed against the decision of trial Court in application under Order 39 Rules 1 and 2, Code of Civil Procedure. The matter was re-heard by another learned Judge who dismissed the same on May 1, 1985.

Thereafter, the Petitioner filed Contempt Petition No. 51 of 1983 in this Court. During this time, the Respondents filed a plan indicating the premises which they intended to give to the Petitioner in terms of the decree. The contempt petition was withdrawn since it was felt that the Petitioner had a remedy by way of execution against the trial Court decree. Accordingly, Execution Petition No. 5-10 of 1986 under Order 21 Rule 11, CPC was filed in the Court of Sub-Judge, First Class (3), Shimla. The parties appeared before this Court. The Respondents contested this application tooth and nail. They filed objections u/s 47, Code of Civil Procedure, issues were framed, parties were heard and the objections were decided on January 11, 1988. They were partly allowed and partly rejected. The Court identified the premises (Ext.OW-3/A) and directed the Executive Engineer, Public Works Department, Winter Field, Shimla to assess the rent of the premises and to submit the report to the Court. The rent was to be assessed as on July 4, 1977.

After receiving the report from the Executive Engineer concerned, the matter appeared before the Court on number of occasions On June 29, 1988 the statement of Respondent No. 3, who is General Power of Attorney of Respondents No. 1 and 2, was recorded and the Court passed the following order:

29-6-1988. Present: Sh. Pawan Thakur, Adv. Csl for the D.H. with D.H in person.

Sh. Bhupinder Gupta, Adv. Csl. for the J.D. with Attorney of the J.D. in person.

Rent deed has been executed by the D.H. which is in favour of the J.Ds and has been handed over to the Attorney of the J.Ds. The Attorney of the J.Ds. undertakes to handover the vacant possession of the set to the D.H. on 7-7-1988 getting it made duly habitable i.e. after getting it white washed etc. The D.H. has agreed to this undertaking and in view of the no objection of the D.H., the undertaking is accepted by the Court also his undertaking has been duly recorded and he has been made aware of the consequences of breach of this undertaking also. Due to the prolonged litigations between the parties the D.H. is hypersensitive and prays that the final order may be made in this case after ihe possession is handed over to him. In the circumstances of the case the prayer seems to be reasonable and accepted and file now to come up on 8-7-1988 for further orders.

The matter was taken up on July 8, 1988 again. The order passed on this date is reproduced below:

8-7-1988. Present: Sh. Gopal Sessodia, Adv. vice Csl. for the D.H. with D.H. in person.

Sh. Bhupinder Gupta, Adv. Csl. for the J.D.''s with Attorney of the J.D. in person.

Today the case was fixed up for final orders after the possession of the residential set was to be handed-over to the D.H. by the J.D''s. The D.H. has stated that he has been handed over the possession of the residential set by the J.D.''s, but the same is absolutely inhabitable as the J.D.''s have permanently closed the windows etc in existence there and the wiring in the premises has also been done away so that the D.H may not enjoy his right alongwith in occupation of the premises. The learned Csl. for the J.D. has stated that nowhere it has been decreed that he would be given a room with electricity wiring etc. nor any residential set with windows has been decreed in favour of the D.H., therefore this is beyond the jurisdiction of this Court to order in this regard as the sole jurisdiction of this Court is to execute the decree in favour of the D.H. The D.H. has prayed for appointment of L.C. who may submit his report to this Court whether this allegation qua the premises handed over to him are reasonable and genuine or not, but in view of the objections of the Id. Csl. for the J.D.''s to the D.H.''s objection as in which have already given away there is no need to appoint L.C. in this case, as the Id. Csl for the J.D.''s has virtually admitted the allegations of the D.H. in this regard.

Although to some extent the Id. Csl. for the J.D.''s has rightly argued that this being execution Court cannot go beyond the decree, but since the suit of D.H. which has been decreed in his favour afforded him a residential set in the premises of the J.D.''s in the capacity of a tenant and the ward residential set cannots that the premises should be fit for human habitation and in a place like Shimla electricity connection is not luxurious amenity, but a necessity which ought to be made available in the residential set by the J.D.''s and further more the arguments of defence by the Id. Csl for the J.D.''s that no window etc. was assured to the D.H. in the plan that Ext.OW-3/E which is on the record, but the same plan depicts that ventilator is shown on the outer wall of the room measuring 10.6'' X 8.6'' which ought to be there in the premises, more over simply if unsatisfied decree is passed in favour of the person and the same is qua a residential set then it is difficult to be appreciated that the same set cannot a black cell for habitation of the D.H. as the same set is meant for residence and should be humanly habitable and the same is suppose to have enough provisions of ventilations and light and air, therefore the J.D''s are directed to make the residential set shown in Ext.OW-3/E reasonably habitable by making arrangement of proper light and air as well as by getting electricity wiring in the set so that it is humanly possible for the D.H. and his family to reside there. In my opinion this main necessary arrangements are expected to be there in the residential set which can be sufficiently construed from the decree in favour of the D.H. keeping in view the already prolong litigation between the parties the J.D.''s are directed to make a set in Ext.OW-3/E habitable within a fortnight from today. File now to come up for further orders on 26-7-1988.

The Petitioner also sent notice to the Respondents to comply with the Court order. In response to this, the Respondents stated that they would comply with the Court order but actually did not do so. Ultimately, the Petitioner moved an application u/s 15(2) of Contempt of Courts Act pointing out the infringement of the undertaking/orders passed by the Court and wanted that the matter be referred to this Court. This decision has been passed by the trial Court on September 4, 1990 after finding prima facie case against all the Respondents. This is how the matter came to this Court.

On December 7, 1990, notice was issued to the Respondents. They appeared and filed their affidavits in this case. These are some of the essential features of the case between the parties. The sole question for determination is whether the Respondents have committed breach of the undertaking given to the Court and are, therefore, liable to be punished therefor. Before answering this question, it is important to deal with the preliminary objections raised by the Respondents in this case. The first objection is that the contempt proceedings are barred by time.

Shri D.D. Sood, learned Counsel for the Respondents, vehemently contends that Section 20 of the Contempt of Courts Act, 1971 prescribes a period of one year for initiating contempt proceedings. In the present case the contempt, if any, was committed on June 29, 1988 and the cognizance was taken by this Court on December 7, 1990. Therefore, no cognizance can be taken by this Court in this case. Reference in this regard was made to decisions like: 1974 Bom 116, The State of Maharashtra v. J.V. Patil AIR 1978 Knt 57 ; N. Venkataramanappa Vs. D.K. Naikar and Another, , Om Parkash v. D.K. Mittal and Anr.

These decisions refer to the stage when contempt is committed and the cognizance thereof taken. For the purpose of Section 20 of the Contempt of Courts Act, 1971, there is no dispute about this position but the question is whether on facts these decisions apply. In my considered opinion, these decisions turn on their own facts and in order to decide the present case, I have to confine myself to the circumstances how the contempt came to be committed by the Respondents in this case. Here, the relevant decision, on which reliance can properly be placed, is reported in Firm Ganpat Ram Rajkumar Vs. Kalu Ram and Others, . It has been held by the apex Court in this decision that the contempt is a continuing offence and Section 20 would not be applicable in such circumstances, if the facts of the case so demonstrate, meaning thereby, if direction to put a party in a possession is violated and is not complied with, the contempt continues to be committed till the Court order is complied with by the concerned party.

13 Further, the most relevant and important decision touching the jurisdiction of Supreme Court and High Courts is reported in Pritam Pal Vs. High Court of Madhya Pradesh, Jabalpur through Registrar, Jabalpur through Registrar. After referring to important observations of the apex Court in this decision in various paragraphs it is not necessary to look for any other case to highlight the point in issue and notice the law touching the contempt jurisdiction of this Court. I like to refer extensively some of the paragraphs of this decision. They are:

As rightly pointed out by the High Court, these contentions in our opinion do not merit any consideration since every High Court which is a Court of Record is vested with ''all powers'' of such Court including the power to punish for contempt of itself and has inherent jurisdiction and inalienable right to uphold its dignity and authority.

Whilst Article 129 deals with the power of the Supreme Court as Court of Record, Article 215 which is analogous to Article 129 speaks of the power of the High Court in that respect.

Prior to the Contempt of Courts Act, 1971, it was held that the High Court has inherent power to deal with a contempt of itself summarily and to adopt its own procedure, provided that it gives a fair and reasonable opportunity to the contemner to defend himself. But the procedure has now been prescribed by Section 15 of the Act in exercise of the powers conferred by Entry 14, List III of the Seventh Schedule of the Constitution. Though the contempt jurisdiction of the Supreme Court and the High Court can be regulated by legislation by appropriate Legislature under Entry 77 of List I and Entry 14 of List III in exercise of which the Parliament has enacted the Act, 1971, the contempt jurisdiction of the Supreme Court and the High Court is given a constitutional foundation by declaring to be ''Courts of Record'' under Articles 129 and 215 of the Constitution and, therefore, the inherent power of the Supreme Court and the High Court cannot be taken away by any legislation short of constitutional amendment. In fact, Section 22 of the Act lays down that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law relating to Contempt of Courts. It necessarily follows that the constitutional jurisdiction of the Supreme Court and the High Court under Articles 129 and 215 cannot be curtailed by anything in the Act of 1971. The above position of law has been well settled by this Court in Sukhdev Singh Sodhi v. The Chief Justice and Judges of the Pepsu High Court Sukhdev Singh Sodhi Vs. The Chief Justice and Judges of The Pepsu High Court, holding thus:

In any case, so far as contempt of a High Court itself is concerned, as distinct from one of a subordinate Court, the Constitution vests these rights in every High Court, so no Act of a legislature could take away that jurisdiction and confer it afresh by virtue of its own authority.

In R.L. Kapur Vs. State of Madras, a question arose did the power of the High Court of Madras to punish contempt of itself arise under the Contempt of Courts Act, 1952 so that u/s 25 of the General Clauses Act, 1897, Sections 63 - 70 of the Penal Code and the relevant provisions of the Code of Criminal Procedure would apply. This question was answered by this Court in the following words (at p. 859 of AIR):

The answer to such a question is furnished by Article 215 of the Constitution and the provisions of the Contempt of Courts Act, 1952 themselves Article 215 declares that every High Court shall be a Court of record and shall have all powers of such a Court including the power to punish for contempt of itself. Whether Article 215 declares the power of the High Court already existing in it by reason of its being a Court of record, or whether the article confers the power as inherent in a Court of record, the jurisdiction is a special one, not arising or derived from the Contempt of Courts Act, 1952, and therefore, not within the purview of either the Penal Code or the Code of Criminal Procedure.

The view expressed in Sukhdev Singh Sodhi AIR 1954 SC 186 , and followed in R.L. Kapur Vs. State of Madras, has been referred with approval in a recent decision in Delhi Judicial Service Association v. State of Gujarat (1991) 4 SCC 406 : AIR 1991 SCW 2419, holding that the view of this Court in Sukhdev Singh Sodhi is "that even after the codification of the law of contempt in India, the High Court''s jurisdiction as a Court of Record to initiate proceedings and take seisin of the matter remained unaffected by the Contempt of Courts Act, 1926

In Delhi Judicial Service Association case AIR 1991 SCW 2419 (supra), it has been pointed out as follows (para 19):

Article 129 provides that the Supreme Court shall be a Court of record and shall have all the powers of such a Court including the power to punish for contempt of itself. Article 215 contains similar provisions in respect of a High Court. Both the Supreme Court as well as High Courts are Courts of record having powers to punish for contempt including the power to punish for contempt of itself.

From the above judicial pronouncements of this Court, it is manifestly clear that the power of the Supreme Court and the High Court being the Courts of Record as embodied under Articles 129 and 215 respectively cannot be restricted and trammelled by any ordinary legislation including the provisions of the Contempt of Courts Act and their inherent power is elastic, unfettered and not subjected to any limit. It would be appropriate, in this connection, to refer certain English authorities dealing with the power of the superior Courts as Courts of Record.

Then, finally, in paragraph 41 the court observed that:

The position of law that emerges from the above decisions is that the power conferred upon the Supreme Court and the High Court, being Courts of Record under Articles 129 and 215 of the Constitution respectively is an inherent power and that the jurisdiction vested in a special one not derived from any other statute but derived only from Articles 129 and 215 of the Constitution of India (See D.N. Taneja Vs. Bhajan Lal, and therefore the constitutionally vested right cannot be either abridged by any legislation or abrogated or cut down. Nor can they be controlled or limited by any statute or by any provision of the Code of Criminal Procedure or any Rules. The caution that has to be observed in exercising this inherent power by summary procedure is that the power should be used sparingly, that the procedure to be followed should be fair and that the contemner should be made aware of the charge against him and given a reasonable opportunity to defend himself.

If I look at the facts of this case, it is plainly clear that the issue of hanging over possession of the premises had not ended between the parties. The Petitioner had been insisting for the possession of a suit suitable for human living and the Respondents had been avoiding it from time to time. The matter was brought to the notice of this Court, then taken in execution and the executing Court had been trying to settle the matter directing the Respondents to hand over a suitable, habitual accommodation to the Petitioner as recorded in the statement. However, nothing was done. The matter continued and then it was referred to this Court and the Court started dealing with the matter from December 7, 1990. There is complete continuity in the contempt committed by the Respondents by intentionally and wilfully evading the undertaking given to the Court to put the Petitioner in possession of the premises duly identified for the purpose. On this plane the proceedings cannot be said to be barred by time. Alternatively, looking to the legal position discussed in the preceding part of this judgment, this Court has inherent jurisdiction and power to deal with the matter and this power is not controlled by any other statutory law including the bar of limitation. The contention raised by the learned Counsel for the Respondents, therefore, fails and is accordingly rejected.

Now, I deal with the second contention of Shri D.D. Sood, learned Counsel for the Respondents that the decree of the trial Court has been passed in tune with Ext.PA and the trial Court could not have travelled outside the scope of this decree since it had no jurisdiction to do so.

If I look at the facts of this case it is clear that the trial Court has not, in fact, gone beyond the scope of the decree. It dealt with the matter on the basis of two factors, namely, agreement between the parties (Ext.PA) and undertakings given by the Respondents to it from time to time. All through, the efforts of the trial Court had been to settle the matter between the parties. It made serious efforts to identify the premises. It had been impressing upon the recalcitrant Respondents to make the premises habitable, so that human being could occupy and live in the same. It miserably failed. Ultimately, it had no option but to deal with the matter and refer it to this Court, since it had itself no jurisdiction to deal with the matter. The contention, therefore, has no force and is, therefore, rejected.

Now, I deal with the merits of the case. Before dealing with the facts of this case and the contention raised, it is worthwhile to take note of the observations of the apex Court in Pritam Pal''s case (supra), as recorded in paras 48 to 52:

In Morris v. The Crown Office (1970) 1 AER 1079 , Lord Denning, M.R. said:

The course of justice must not be deflected or interfered with. Those who strike at it strike at the very foundations of our society.

In the same case, Lord Justice Salmon spoke:

The sole purpose of proceedings for contempt is to give our Courts the power effectively to protect the rights of the public by ensuring that the administration of justice shall not be obstructed or prevented.

Frank Farter, J. in Offutt v. U.S. (1954) 348 US 11 expressed his view as follows:

It is a mode of vindicating the magesty of law, in its active manifestation against obstruction and outrage.

In Jennison v. Baker (1972) 1 AER 997, it is stated:

The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope.

Chinappa Reddy, J. speaking for the Bench in Advocate-general, State of Bihar Vs. Madhya Pradesh Khair Industries and Another, citing those two decisions in the cases of Offutt and Jennison (supra), stated thus (para 7 of AIR):

...it may be necessary to punish as a contempt, a course of conduct which abuses and makes a mockery of the judicial process and which thus extends its pernicious influence beyond the parties to the action and affects the interest of the public in the administration of justice. The public have an interest, an abiding and a real interest, and a vital stake in the effective and orderly administration of justice, because, unless justice is so administered, there is the peril of all rights and liberties perishing. The Court has the duty of protecting the interest of the public in the due administration of justice and, so, it is entrusted with the power to commit for Contempt of Court, not in order to protect the dignity of the Court against insult or injury as the expression "Contempt of Court" may seem to suggest, but to protect and to vindicate the right of the public that the administration of justice shall not be prevented, prejudiced, obstructed or interfered with.

Shri D.D. Sood, learned Counsel for the Respondents submitted that there was no undertaking given to the Court that the premises to be handed over to the Petitioner, would be habitable. The premises were handed over on June 29, l988 and the Petitioner had taken possession of it. In these circumstances, it cannot be said that the undertaking given to the Court has been violated.

There is no substance in this contention, if I go through the case file, more particularly, the orders passed by the Court from time to time and the statements of the Respondents recorded in this case. However, even if I look at the version that the possession was given on June 29, 1988, it was simply an eye-wash. The facts disclose that the accommodation provided to the Petitioner was simply a barrack. It had no electricity, no white-washing, no ventilation etc etc. The contention that there was no undertaking to provide accommodation other than the one given to the Petitioner, is hardly acceptable. The Petitioner had left a habitable accommodation by virtue of the agreement Ext.PA to enable the Respondents to re-construct the house. The case file discloses that the Respondents had admitted that a suite would be given to the Petitioner on re-construction of the house. The accommodation or a suite, by whatever nomenclature it may be called, was obviously to be a habitable one which the Petitioner could occupy and live there with his family and not a barrack, devoid of any basic amenities/facilities.

If I refer to the pleadings of the Respondents, it has been stated therein by the Respondents that the accommodation had electricity and other facilities. This goes contrary to the submissions now being raised by the learned Counsel for the Respondents that there was no undertaking to provide accommodation having facilities of electricity, light, ventilation etc. The accommodation (OW 3/E) had been identified by the trial Court and it was to be handed over by the Respondents in pursuance of the decree and the trial Court had not gone outside the scope of the decree in this case.

This Court also afforded opportunity to the parties if they could find out a workable solution to the problem out of the Court, but the parties failed to arrive at any such settlement. The learned Counsel for the parties were again asked to sit, discuss and finalise the alternatives between the parties by order dated November 26, 1992. They filed alternatives but could not arrive at any solution. The allegations of the Petitioner that the premises being provided to him, were devoid of all facilities, is amply clear from the contents of C.M.P. No. 13 of 1992, recorded in para 3 thereof. In the circumstances, the matter could be conveniently settled, in case the Respondents had taken a reasonable stand by accepting the alternatives putforth by the Petitioner in his proposal demanding two rooms with right to use the latrine in the suite described in Ext.OW-3/E. These two rooms are in the occupation of Respondent No. 3 and his brother and are located adjacent to the Fire Office and on the side of Kamna Devi Temple.

It is, therefore, clear that the set being offered presently to the Petitioner by the Respondents, is devoid of all facilities. Even if electricity and white-washing is provided and undertaken, the question of providing windows/ventilator with or without grills cannot be provided since it would expose the privacy of the Petitioner and his family since the other side has been let out to Fire Department to be used as its office.

24 In the circumstances aforesaid, the only conclusion that can be drawn is that it is a case where the Respondents nave intentionally and wilfully disobeyed the undertaking given to the Court. They have paid scant regard for the majesty of the Courts all through and it is not exaggeration to say that the Respondents have not only deceived the Petitioner but also the Courts by taking one stand or the other simply to see that the undertakings and statements given by them from time to time are frustrated They have, therefore, committed gross contempt of the Court and are, therefore, liable to be punished accordingly.

Looking to the facts and circumstances of this case, each of the Respondents are sentenced to simple imprisonment for a term of six months and to pay fine of Rs. 2,000. For failure to pay the fine, they would undergo further simple imprisonment for three months.